United States v. Texas and the future of immigration reform

The United States Supreme Court is reviewing a challenge to President Obama’s 2014 executive action that would shield millions of undocumented immigrants from deportation. Below is a brief review of how years of organizing resulted in the president’s executive order, how the president’s plan would benefit undocumented people, and what might happen depending on how the Supreme Court rules on the challenge.

Why did the president take executive action?

Anti-immigration activists who complain that the president overstepped his Constitutional authority in shielding undocumented people from deportation have only themselves to blame. In 2013, the Senate passed bipartisan comprehensive immigration reform that would have put millions of working people and families on a path to citizenship and ended the wave of deportations that continue to terrorize immigrant communities to this very day.

The Senate bill enjoyed wide support in the House of Representatives and would have passed and been sent to the president’s desk in a single floor vote as plenty of Democrats and Republicans were committed to voting in favor of reform. However, bowing to pressure from far-right Republicans opposed to the bill and committed to denying President Obama anything resembling a legislative victory, Speaker of the House John Boehner refused to even allow a vote on the Senate bill.

The pressure on the Speaker to allow a vote intensified, but Boehner held his ground until the Congressional session ended, effectively killing the bill.

Soon after, Boehner announced his retirement.

As Congress debated comprehensive immigration reform, deportations continued unabated and 1,500 people every single day were picked up during ICE raids on the job or at their home and sent back to a country that many had not been back to in years, even decades. Many of those deported were their household’s sole breadwinner, leaving millions of families in dire financial straits.

Despite ICE Director John Morton issuing a memo in 2011 that instructed ICE agents to prioritize deporting undocumented people with criminal records, the Obama Administration cast a wide net, deporting tens of thousands of people each year with no criminal record or those who had only committed petty, non-violent offenses.

Immigration advocates dubbed President Obama the “Deporter-in-Chief” as the number of people deported during his tenure approached and then surpassed two million. The president insisted time and again that only Congress could act to stop deportations, but such logic ran counter to reality of the situation. In fact, the president had used his executive powers in 2012 to shield up to 1.7 million people by instituting Deferred Action for Childhood Arrivals (DACA).

As it became clear that Speaker Boehner was going to let comprehensive immigration reform die, immigration advocates shifted their full attention to President Obama, urging him to stop the record-breaking deportations on his watch and give families and working people relief from deportation using any and all tools at his disposal.

Finally, in late 2014, the years of fighting individual deportation cases, civil disobedience at ICE offices and detention centers across the country, and the countless phone calls and letters to the White House, the organizing bore a partial victory as President Obama announced an expansion to DACA and a new program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

What is DACA and DAPA?

Deferred Action for Childhood Arrivals (DACA) is a program instituted by President Obama’s executive order in 2012. The original program exempted from deportation undocumented people who had arrived in the United States before their 16th birthday and before June 2007 and them to apply for renewable two-year work permits. In 2014, the president announced an expansion to DACA that would remove the age limitation, extend the work permits to three years, and make eligible immigrants who arrived prior to 2010.

Alongside the expansion of DACA, the president created Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would exempt from deportation and provide renewable three-year work permits to parents of American citizens or legal permanent residents who have been in the United States since 2010 or before.

Together, DACA+ and DAPA would provide temporary legal status and shield from deportation as many as 4.4 million of the estimated 11 million undocumented immigrants in the United States.

Why did the courts get involved?

Before DACA+ and DAPA could be implemented, anti-immigrant groups and Republican governors from 26 states filed a lawsuit with the notably conservative district court in Texas. The court ruled that the president’s actions were unconstitutional and in late 2015, the 5th Circuit Court of Appeals in New Orleans upheld the lower court’s ruling. The Obama Administration asked the Supreme Court to review the case, which the court agreed to in early 2016.

The Supreme Court is hearing oral arguments in mid-April and a final decision will likely be made public in June.

What is the likely outcome?

Nobody knows. The death of Justice Antonin Scalia means that what looked like a certain victory for anti-immigration advocates now is less likely. Still, the tenor of the questioning from Chief Justice John Roberts and Justice Anthony Kennedy seems to imply that the court may rule against the president and prevent DACA+ and DAPA from ever being implemented.

However, the court could also rule that Texas does not have legal authority to bring the case against the Obama Administration, a possibility that lawyers for the Administration are advocating. If the court ruled this way, DACA+ and DAPA would be implemented but the coourt would not have set precedent on whether President Obama had overstepped the Constitutional limitations to executive power.

If the court splits 4-4 in the absence of Justice Scalia, the court will defer to the 5th Circuit’s decision and DACA+ and DAPA will never be implemented. But again, due to the even split in the court, no precedent will be set for or against the president’s executive authority.

What can you do?

Unfortunately, the Supreme Court is not susceptible to being influenced by phone calls, letters, and demonstrations the same way elected officials can be moved to support or oppose an issue. The implementation of DACA+ and DAPA is effectively out of the hands of advocates from either side.

In the meantime, we need to start organizing now to pass comprehensive immigration reform after this year’s election. To help, consider joining a national immigration advocacy group like Reform Immigration For America or America’s Voice.

And if you want to take action right now, check out the #Not1More Deportation campaign and speak out to stop a deportation and keep a family together.